Living Law As Method

The theory of "living law" is the method of legal sociology. Ehrlish brings those norms which have the practical functions in the daily life such as the custom laws or the jurists' laws into the extension of the concept of law. In light of this creation on the perspective, he makes an expansion for law while he opposes over the view of legal pragmatism that he consider the law as the active rules but not the judicial rules. So the written statutory is the small part of laws and the individuals who never get into the judicial processes are the potential subjects by the active rules. Comparing with the other theories about the common researches on what is the living law; Ehrlish's Fundamental Principles of Legal Sociology has given an interpretation on the theory of living law in the sense of methodology actually. And on the basis of the theories regarding legal positivism, he explores the laws with the creative methodology that is the theory of living law to enrich the extension of the concept of law. Therefore, living law is the root of Ehrlish's legal sociology which guides all of his thoughts concerning with this area. The basic principles, the legal thesis, the functions of jurisprudence and the written laws by state or the custom laws and other legal sociological thoughts in this masterpiece are all established on the foundation of living law theory. By the arising of this theory, the survey perspective of legal sociology turns a radical conversion which changes the position of the normative law by the legal rules themselves into the position of the society-focus theory outside the legal rules, which get a great wide horizon to treat these problems above.The body-text are divided into four parts expect for the introduction and the conclusion.The introduction is mainly discussing the personal background and the masterpieces of Ehrlish. Through the collection of the relative materials, the author gives a academic summary about his legal sociology and draws an outline of the focus in this paper——the structures and the content in Ehrlish's Fundamental Principles of Legal Sociology.PartⅠis talking about the method in legal sociology——the living law theory. At the beginning of this part, the author brings forward the standpoint in the whole text that the living law theory is the method of legal sociology. As the reasons by judges are the written laws by states, they are not completed in fact. If the written laws are made, they have been fallen behind the real social life so as not to depend on the outdated laws to deal with the anew and legal problems happened in the real life. As result that the judicial discretion as the "free-judgment way" is the necessary supplement for the judgment way along the strict written rules. So the introduction of the positive survey by Ehrlish for the legal sociological studies is a magnificent contribution. Living law as the basis of legal sociological theory of Ehrlish embodies the book above and directs the other theories of Ehrlish.PartⅡis discussing about the fundamental principles about law. As we know, the insider order in a social community is the soul of law. And those enjoiners construct the rules of insider order that could transfer into the active living rules as the identity and abidance by the members in this community generally. The balance of the society should be kept by the insider order of human community. Thus the concept of law may considered as the following two aspects as the rules of judicial judgment and the rules of people's actions. The law as one of the active rules that could not regulates all the actions by the human community. Those who regulated by the legal rules are the part f the legal order. And the differences between the two rules have the different extensions that the judicial rules as the rules of judges are much narrow than the general active rules form the view of binders. Then the judgments by courts are not only including the legal rules but also the non-legal rules which are the complements for the lacking of the legal rules. Therefore, the judicial discretion is helpful for the transfers between the legal and non-legal rules while the non-legal rules are still limited toughly.PartⅢis to induce the legal thesis and the functions of jurisprudence. Jurisprudence is an intellectual activity by the proper expressions way on the universal valid thesis abstracted from the judicial rules. And the enterprise of these enjoiners is including the judges and the legal scholars or legal teachers too. Only the just and fair-minded benefits should be protected by the laws that could be gifted the legal forces. By these intellectual activities, all of these benefits shape the legal thesis based on the changeable idea of justice. As the correct and practical elements among themselves, the legal thesis could get more acknowledgements. On the contrast, if the legal thesis are still strapped on the records, teachings and publishes as the written laws, it would be nonsense for this process. So Ehrlish emphasized the functions about the lawyers such as attorneys, judges and jurists.PartⅣis to analyze the written laws and the custom laws. The rules made by the states are distinguished from the social rules shaped by the insider society, which couldn't enforced by the social constraints but executed by some obliged organizations to carry out the states' rules. Law is not originated from the state but the birth and transformation of the system of social customs. The transformation of codes binds the free-development of jurisprudence and narrowed the space of it. When the social developments surpass the limits of regulation by codes, the movement of "free-discovery of law" finds the revolution of the principal custom rules from the society to deal with the problems of the delays in laws. By the successive moves of the jurists' codes, the jurisprudence pushes the development of law as usual.Overall, the foundation of Ehrlish's theories is that law is one of the great dual of social rules that is rooted into the social relationships and obligated automatically with the most rules. Thus the main points in this paper are following: we should treat the living law theory by Ehrlish as a method. In the past, the legal sociology excludes the system of rules which makes the pure legal studies in society considered by the traditional views of legal intellectual history in China. This bias directs the prejudice on the studies on the sociology which dilutes the favor of legal studies. Ehrlish as the founder of modern legal sociology gives an opposite eye on this issue. Among Fundamental Principles of Legal Sociology, he pours much attention on these basic theses of analyzed legal positivism such as the thesis of legal facts, the judicial rules and the states and laws; finally he induces the legal sociology. In Ehrlish's world, legal sociology is based on the discussion of the exploration about law which is a more profound legal study but not the pure sociological studies. The legal sociology has the dual-identities that are not only the section of sociology but also the branch of jurisprudence.